Miss J Yousif v Defaqto Leisure Ltd T/a Terrace NQ: 2402407/2024

EMPLOYMENT TRIBUNALS

Case No 2402407/2024

Between

Miss J YousifClaimant

Defaqto Leisure Ltd T/a Terrace NQRespondent

Before

Employment Judge Dennehy

In person for claimant

Date 15 December 2025

JUDGMENT

[1]The claimant was constructively dismissed by the respondent and that constructive dismissal was unfair. The claim under section 39(7) of the Equality Act 2010 succeeds.

[2]The claimant was harassed and subjected to unwanted conduct because of her race in relation to the allegations set out in the list of issues at 5.1.1, 5.1.2, 5.1.3, 5.1.4, 5.1.8 and 5.1.9. These complaints for harassment because of race under section 26 of the Equality Act 2010 succeed. These complaints were part of a continuing series of conduct that began in late August 2023 and continued until the claimant resigned and are in time.

[3]The claimant was not harassed and subjected to unwanted conduct because of her race in relation to issues 5.1.5,5.1.6, 5.1.7, 5.1.10, 5.1.11 and 5.1.12. These complaints for harassment because of race under section 26 of the Equality Act 2010 are dismissed.

[4]The claimant was not treated less favourably by the respondent because of race. The claim for direct discrimination because of race under section 23 of the Equality Act 2010 is dismissed.

[5]The claimant was not subjected to a detriment by the respondent because she had done a protected act. The claim for victimisation under section 27 of the Equality Act 2010 is dismissed.

[6]A remedy hearing for one day is listed for 18 March 2026 in person at Page 1 of 34 Manchester Employment Tribunal.

REASONS

[1]At the start of the hearing the claimant confirmed her claim was for: Direct race discrimination; Harassment related to race; Victimisation; Constructive discriminatory dismissal. The claimant described her protected characteristic as half Arab half black. She was seeking financial compensation and a recommendation.

[2]The claim is about complaints the claimant made re alleged discriminatory acts, the respondent’s response to those complaints and the claimant’s subsequent resignation. The respondent’s defence is that the claimant resigned after receiving a disciplinary warning.

[3]I clarified the issues to be determined with the parties at the start of the hearing and both parties confirmed that it was as per page 113-118 of the bundle which had been agreed at the preliminary hearing on 03 February 2023.

[4]The claimant was representing herself and the respondent was represented by Mr Turner. I reminded the claimant that she could bring a friend for support during the hearing.

[5]The hearing was originally been listed for five days, but due to judicial resources this was reduced to four days. The Tribunal conducted its deliberations in chambers on 5 December 2025. Documents and witnesses

[6]The hearing was conducted in person with both parties and all witnesses, with the exception of Ms Field, in attendance at the Manchester Employment Tribunal. Ms Field gave evidence on the second day of the hearing via CVP from Australia. No reasonable adjustments were requested by either party for themselves or any of their witnesses.

[7]The Tribunal heard from the claimant herself and for the respondent from Ms Tilly Field, Assistant General Manager, Ms Becca Thomasson, Assistant General Manager, Mr Charlie Hayes, Operations Manager and Mr Marc Platt, Assistant General Manager. All witnesses, including the claimant, provided written witness statements, were cross examined and answered the Tribunal’s questions.

[8]There was an agreed bundle of documents amounting to 232 pages, which has been prepared by Mr Turner.

[9]After the evidence was heard, each of the parties were given the opportunity to make final submissions. Both parties submitted written final submissions by 10am on the final day of the hearing, which we carefully considered. Page 2 of 34

[10]Due to the hearing being shortened, Judgment was reserved. The Tribunal took the remainder of the time available on the final day of the hearing to reach its decision. Accordingly, the Tribunal provides the Judgment and the reasons outlined below. Finding of Facts

[11]Having considered all the evidence, we find the following facts on a balance of probabilities.

[12]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because, we have limited them to points that are relevant to the legal issues.

[13]The claimant was employed by the respondent, as a Bar Tender from 16 June 2023 working flexible shifts and worked an average 34.5 hrs a week in her last 12 weeks of employment.

[14]The claimant described herself as an estranged student, which she explained means she was solely financially responsible for herself and had no other financial support. The claimant was a full time student and working full time at the respondent’s premises.

[15]The claimant described her protected characteristic as half Arab and half black and this was not disputed by the respondent.

[16]The claimant signed terms and conditions of employment on 16 June 2023. These terms contain the respondent’s Disciplinary and Grievance Procedures.

[17]The Tribunal were not shown any evidence that the claimant’s terms and conditions regarding disciplinary procedures had been varied at any time.

[18]The respondent operates a busy public house/bar named Terrace NQ in the Northern Quarter of Manchester city centre and has approximately 50 staff at the bar. The majority of staff are young people. Policies and Procedures

[19]The respondent’s disciplinary procedure states “In the event of misconduct a verbal warning will be given this will remain on your record for the period of one year.In a second instance of misconduct a first written warning will be given, when a written warning is still on record. There is a subsequent second written warning and after this instances of misconduct will result in immediate termination of employment. In cases of gross misconduct employment will be terminated immediately without any further notice.”

[20]The Tribunal was not shown any documentary evidence to demonstrate that any of the respondent’s staff or the claimant being told what might constitute misconduct.

[21]The respondent’s grievance procedure purpose is stated as “ The purpose of this grievance procedure is to ensure that every employee has the opportunity to resolve work problems in an organised and fair manner. The grievance Page 3 of 34 procedure is not intended to take the place of normal communications: it should be used if you have a concern or complaint about your employment which cannot be resolved through informal discussions with your colleagues or managers.”

[22]The procedure states “ If you have a grievance about your employment, or feel you are the subject of harassment or unfair treatment and you have been unable to resolve the matter informally, you must contact(name of employer) and advise him/her of the details as soon as possible. Except in the cases of harassment you should also suggest a remedy or solution to your grievance (name of employer) will then consider and investigate your grievance and notify you within ten working days or as soon as is reasonably, of hers/his proposal on how to resolve it.

[23]We found that the entirety of the respondent’s disciplinary and grievance procedure was contractual, which is unusual. The Tribunal was shown no other documents that referred to disciplinary and/or grievance procedures of the

[24]Mr Hayes was the most senior employee of the respondent that gave witness evidence.

[25]Mr Hayes told the Tribunal that he was proud of the diversity of the respondent’s workforce which at the time (2023) the diversity of the respondent workforce was: 20% persons of colour. Mr Platt confirmed that persons of colour means non white. The claimant challenged this by asking Mr Platt to name all of the persons of colour and Mr Platt could only recall 8 names. We do not place much weight on this because of transitory nature of workforce, and high staff turnover in bar staff.

[26]Although Mr Hayes told us about his strongly held belief that it was a diverse workplace, there was no evidence presented to the Tribunal of any equality policies. In respect of equality training, the respondent’s witness all confirmed that they had attended an internal workshop on equality, but this was after the incidents that are the subject matter of this claim.

[27]We found that the respondent had an awareness of ACAS guidance on disciplinary and grievance procedures, but the specifics were not applied in practice. Incident 1

[28]The claimant’s case is that on or around late August/early September 2023 the claimant was sat in the rooftop terrace bar and a co-worker bar tender Mr Hugo Pellett mispronounced a fellow colleague’s name,Mr Kael Steele. Mr Steele was also a person of colour. The claimant and another co worker, Ms Racquelle Rizk corrected Mr Pellett on this, as they found Mr Pallett’s mispronunciation to be micro aggressive behaviour. Whether this happened or not was not challenged by respondent. Neither the claimant or the respondent called Mr Pellett or Ms Rizk as witnesses. Incident 2

[29]During the last week of September 2023, the claimant called Mr Pellett by the name Henry by accident and immediately apologised for this to Mr Pellett. The claimant’s recollection of events is that Mr Pellett started to call her Racquelle (who Page 4 of 34 was of the same race as the claimant) and was in the respondent’s workforce. The claimant said to Mr Pellett “that’s literally racist” to which he replied “Yeah it is “ and laughed in her face while continuing to call the claimant Racquelle. The claimant asserts that this is evidence of Mr Pellett confirming the racist intention of his remark. Mr Hayes told us that if Mr Pellett was a racist then he would have stayed silent when the claimant had said to Mr Pellett “that’s literally racist”.There were no other witnesses to this incident. Neither the claimant nor the respondent called Mr Pellet as a witness.

[30]The respondent did not dispute that the events in incident 1 and/or 2 happened. Ms Field told us that Mr Pellett was never serious whenever he said anything and that he was always sarcastic, although in her witness statement she accepts that the incident did happen and that the claimant was truthful. The Tribunal accepts that both incident 1 and 2 occurred as described by the claimant.

[31]Mr Hayes told the Tribunal that the claimant had taken this remark out of context. Mr Hayes told us that he had decided that this incident wasn’t serious enough to warrant further investigation. Mr Hayes told the Tribunal that he made this decision without reference to any other information. He explained why he believed this, it was because there were many, “he said, she said” disputes that happen amongst young people and alcohol, of which he told the Tribunal that if he had to deal with them all by investigating them, then “I wouldn’t have had time to time to tie my shoelaces”. Informal Grievance

[32]On the 4 October 2023, the claimant told Ms Field about incident 1 and 2. Ms Field asked the claimant if she wished to raise a formal complaint re both incidents and the claimant said she did not, because it would be obvious to Mr Pellett that the complaint had come from her. The claimant says in her witness statement “ I was anxious that making a formal complaint would make the situation worse as he would know it was me that complained, even though the process is confidential”. The reason she gave for this was that there were only two women in the workforce that were of similar race, so Mr Pellet would know it was the claimant who had made the complaint. The claimant was aware that her terms and conditions stated that she must try and resolve the matter informally first, which she told the Tribunal is what she did.

[33]The claimant says that Ms Field had agreed to mention racism intolerance to Mr Pellet in his 121, however Ms Field in her oral evidence denied that she ever said this. We prefer Ms Field’s evidence on this point due to the consistency of her evidence, whereas the claimant only mentioned this once in her evidence.

[34]The claimant’s case is that the remedy she wanted was for Ms Field to mention racism intolerance to all staff at the next staff meeting which was later that day. The claimant wanted a general message re race and how colleagues should be mindful of race when addressing each other. Ms Field told us that she had tried to persuade the claimant to make a formal complaint. In hindsight she accepts she could have pushed harder on this. In her witness statement Ms Field says” Although I didn’t think this was the best way of dealing with the situation, I wanted to respect her wishes of keeping it informal and not having him find out what was said.”

[35]Ms Field did not raise it at the staff meeting later that day. The reason given Page 5 of 34 by Ms Field was that because Mr Pellett was not in the meeting. Ms Field was unsure of what to do next and raised the matter with Mr Hayes. Ms Field and Mr Hayes agreed that they would passively monitor the situation. By that Mr Hayes explained, he wanted to know if any similar race complaints were made by any other staff. Mr Hayes told us that there was no other route telling staff how to raise complaints. We find that by passive monitoring the situation the respondent had not taken any positive steps to ensure that racism wasn’t a problem amongst the respondent’s workforce.

[36]Ms Field did not update the claimant as to why she had not mentioned racism intolerance at the staff meeting that day (or at any other staff meeting), or that she had escalated the matter to Mr Hayes and that they were going to monitor the situation.

[37]Both Ms Field and Mr Hayes confirmed to the Tribunal that they did not make any further enquiries into the informal grievance about race discrimination. They did not speak to Mr Pellet or Ms Rizk. Both Ms Field and Mr Hayes were of the view that because the claimant did not want to raise the matter formally, their hands were tied. In the respondent’s final submissions Mr Turner states that “this prevented Mr Pellet a right of reply to the allegation” and “the respondent would have much preferred to address this matter formally..” The Tribunal finds that at no time did the respondent explain that they felt their hands were tied to the claimant and she was never given any update on her informal grievance prior to her resignation.

[38]We found that Mr Hayes did not seem to understand the difference between purpose and effect, and further that by making a decision on the claimant’s informal complaint without any other information to hand, was evidence of unconscious basis. Probation

[39]On 20 October 2023 the claimant successfully passed her probationary period. Ms Thomasson conducted the review and Mr Hayes signed this off. The respondent confirmed that the claimant was a good employee at that time. Promotion

[40]On 28 November 2023 the claimant attended an interview for an internal promotion. She was not successful. Mr Platt and Mr Hayes were the interviewers.

[41]The respondent interviewed 10 candidates for 2 vacancies for a Supervisory Role. The racial breakdown of the 10 applicants was: 2 persons of colour ie 20%. Neither of the persons of colour were successful at this interview.

[42]Not all of the questions the respondent asked the applicants were identical. Seven of the applicants were asked nine questions and three were only asked seven questions. The additional questions were 8 & 9. Mr Platt told us that the reason for this was accidental and the Tribunal accepts this.

[43]Mr Platt told us that he and Mr Hayes, after each interview make an immediate assessment of yes or no as to whether the applicant should progress to the next stage. After the end of the claimant’s interview both Mr Platt and Mr Hayes had decided that the claimant would not progress to the next stage based on her performance at the interview, which they found to be overconfident and Page 6 of 34 negative. They say that the reason for their view was the negative demeanour in her responses and gave the example of the claimant’s answer to how she would deal with reporting to a successful candidate for the role if she was unsuccessful. The applicants who were successful gave a more positive answer.

[44]Mr Platt told us that if the claimant had been the only applicant she would not have got the job. He also said he told the claimant that he was happy to coach her with questions and answers, so that she could be successful next time. Mr Platt told the Tribunal that he had expected the claimant to perform well in the interview and was surprised that she hadn’t. Mr Platt told us that he did not know about the claimant’s grievance. We accept that the claimant had not met the respondent’s criteria to progress to the next stage and that Mr Platt was not aware of the claimant’s informal grievance. The Tribunal finds that the procedural irregularity re the questions less difficult because of this reasoning.

[45]The claimant was disappointed that the feedback from Mr Platt wasn’t constructive feedback and wasn’t immediately given. Absences

[46]On 21 January 2024 the respondent’s trigger for absence was hit by the claimant. A meeting took place on 26 January 2024 and was attended by Ms Thomasson and the claimant. The outcome was no action was taken. The claimant felt that this meeting was held in a supportive manner and this was uncontested by the respondent. Events of 10 February

[47]The claimant was working at the respondent premises and had previously agreed to take a shift on the following day that started at midday. For operational reasons Mr Hayes needed to change the start time of this shift to 10 am. We have different versions of what was said and the manner it was said in and who first raised the matter. The claimant said that Mr Hayes said told her that she would probably prefer the earlier start time.

[48]We find that Mr Hayes did not make any comment about the claimant’s manner at the time, rather this happened afterwards. The claimant had said to Mr Hayes when he mentioned the earlier start time to the claimant she said“ I’ll make it work”. Events of 11 February

[49]The claimant was due to start at 10am. The claimant told us that usually someone from the bar would call if anyone was late, if they hadn’t let a manager know they were going to be late. The claimant had not received any such call.

[50]The claimant awoke late and texted Ms Thomasson at 10.48 “ Hey I’m so sorry I’m gonna be there in the next 25 mins just woke up, set an alarm for 12 because that’s what my open shift was originally”. Ms Thomasson was not in work until much later that day and was not in work at the time of the text was sent to he by the claimant.

[51]The claimant told the Tribunal that her text message could have been worded better, in that she set her alarm to get to work for 12 and that she had set that time when she had originally accepted that shift before the start time had been changed. Page 7 of 34

[52]The respondent told us that the procedure if anyone was going to be late was that they should phone the bar so that a manager on shift could take the call. However, no documentary evidence was presented to the Tribunal that confirmed this. The record of the staff meeting titled Feb 25 states “Any lateness or sickness requires the member of staff to call and speak directly to a manager.”

[53]The claimant received a text from Mr Olly Todd at 10.49 asking if she was on the way in, to which the claimant responded that she was and that she would be there in 25 minutes.

[54]When the claimant arrived at the bar she started work with another colleague Ms Toni Huston and apologised for being late. Ms Huston was a supervisor. The respondent did not contest that the claimant had told Ms Huston she was sorry for being late. Neither the claimant nor the respondent called Ms Huston as a witness. The Tribunal accepts the claimant’s version of events. Lateness

[55]The claimant’s lateness history was: 4 August 2023

8 November 2023

30 January 2024

11 February 2024

[56]There was some tension between Ms Thomasson’s and Mr Hayes’s evidence about the respondent’s trigger point on lateness and whether it was three times within three months, three times in twelve weeks or three times in thirteen weeks.

[57]Mr Hayes told us that the spreadsheet used to automatically alert the respondent that the trigger point had been reached, had been designed by Mr Todd. Mr Hayes confirmed to the Tribunal when asked, that the accuracy of the spreadsheet had never been tested to ensure that it was correct.

[58]The Tribunal takes the view that the regardless of whichever calculation was used the claimant had never reached the trigger point for lateness. When this was pointed out to Ms Thomasson she said she was embarrassed. When this was raised with Mr Hayes his view was this was fair because the error in the spreadsheet and associated procedures had been applied to everyone in the same way.

[59]We find that the spreadsheet and its calculation was a genuine mistake by respondent. However, we were not taken to any documentation re the process and the spreadsheet rules applied and how any staff knew about the triggers or how they were calculated.

[60]The respondent was of the view that the claimant had reached the trigger point and wrote to the claimant on 11 February 2024 asking her to attend a disciplinary meeting on 13 February. The reason stated was Lateness. This was the only thing mentioned in the letter. There was no evidence attached to the letter evidencing the lateness. The claimant was advised that she could be accompanied to the meeting. Page 8 of 34 Disciplinary Meeting 11 February 2024

[61]The joint decision makers were Mr Hayes and Ms Thomasson. Mr Hayes did the talking and Ms Thomasson took notes. The notes have since been lost. The notes of the meeting have not been seen by either the claimant or the Tribunal. Ms Thomasson confirmed that she did not speak during the meeting.

[62]The outcome was that the claimant was given a written warning. Ms Thomasson sent the outcome letter to the claimant dated 13 February 2024. There was no mention of the claimant’s right to appeal.

[63]The claimant’s terms and conditions of employment states that a verbal warning will be given for misconduct.

[64]Both Ms Thomasson and Mr Hayes in their oral evidence told the Tribunal that the reasons for giving the claimant a written warning were:(i) failure to follow the procedure when late;

(ii) no apology made to senior management when the claimant arrived at the respondent premises;

(iii) the reason given by the claimant for her lateness was strange. and not plausible;

(iv) the respondent believed that the lateness trigger had been met.

[65]The claimant hadn’t seen any evidence of lateness that the respondent was relying on so could not challenge this.

[66]We find that both Ms Thomasson and Mr Hayes in their witness statements have included an overriding consideration, which was the attitude of the claimant in the meeting. Ms Thomasson and Mr Hayes both mention a lack of positivity by the claimant, and it was this lack of positivity ie demeanour, that converted the verbal warning into a written warning. The Tribunal finds that the claimants demeanour appeared to be the reason for escalation to a written warning.

[67]The claimant’s case is that the Mr Hayes had called her rude and unprofessional in the disciplinary meeting. Both Ms Thomasson and Mr Hayes told us that this was a label they were giving to her behaviour rather than to the claimant directly. We accept the respondent’s evidence on this point.

[68]The claimant’s case is that Mr Hayes had created a hostile or intimidating environment towards the claimant in the disciplinary meeting. The claimant told us she was shaking and showed Mr Hayes her hand. When the Tribunal questioned Mr Hayes on whether he could remember any instances when he been hostile or intimidating to the claimant he could not. Ms Thomasson confirmed that she had not witnessed Mr Hayes being hostile or intimidating to the claimant during the disciplinary meeting. As Mr Hayes evidence is corroborated by Ms Thomasson we accept the respondent’s evidence on this point. Page 9 of 34

[69]In the Tribunal’s wider experience we find it highly unusual for a person to be very upset about lateness in a disciplinary meeting. However, the claimant told us that she was fearful of losing her job, because she was an estranged student and that she suffered with anxiety and says the respondent knew this. That the claimant suffered with anxiety was not challenged by the respondent and we accepted that she did and that the respondent was aware of this.

[70]The claimant’s resignation letter was dated 27 February 2024 and she resigned on 01 March 2024.She sent a long resignation letter to the respondent explaining that she felt she had suffered race discrimination. She was then absent due to illness and did not work her notice. Banning from respondent’s premises

[71]The respondent had an unwritten policy, “it was common knowledge” that if any staff member had not worked their notice period, then they would be banned from entering the respondent’s bar for a period of three months. Mr Hayes told the Tribunal that if any staff member was banned then they were not told directly by him that they were banned or how long for. A staff member would only know they were banned if they attempted to enter the respondent’s bar.

[72]The claimant’s case is that she had been told at a party that she was banned indefinitely from the respondent’s premises. Mr Steele had told her that Mr Hayes had said this. All of the respondent’s witnesses confirmed in their witness statement that they did not tell the claimant that she had been banned indefinitely. We prefer the respondent’s evidence on this point.

[73]After the claimant submitted her resignation letter there was no further investigation re the concerns she raised in her resignation letter.

[74]Early conciliation started on 8 April 2024 and ended on 12 April 2024. The claim form ET1 was presented on 19 April 2024.

[75]The respondent filed an ET3 and grounds of resistance on 23 May 2024. The respondent denies all the allegations. An amended grounds of resistance was files on 31 October 2024.

[76]There have been two preliminary hearings, the first on 8 October 2024 and second on 3 February 2025. Relevant Law Time Limits

Relevant Law

[77]The relevant time-limit for claims under the Equality Act 2010 is at section 123 of the Equality Act 2010. According to section 123(1)(a) the Tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.

[78]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B of the Equality Act. Page 10 of 34

[79]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary. A person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.

[80]In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. An example is found in the case of Hale v Brighton and Sussex University Hospitals NHS Trust

UKEAT/0342/17

where it was determined that the respondent’s decision to instigate disciplinary proceedings against the claimant created a state of affairs that continued until the conclusion of the disciplinary process.

[81]Alternatively, the Tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable as provided for in section 123(1)(b).

[82]It is for the claimant to show that it would be just and equitable to extend time. The exercise of discretion should be the exception, not the rule (Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

). Constructive Dismissal

[83]The claimant is bring a claim for constructive dismissal under section 39(7) of the Equality Act 2010 which states that: “(2)An employer (A) must not discriminate against an employee of A's (B)— (c)by dismissing B; (4)An employer (A) must not victimise an employee of A's (B)— (c)by dismissing B; (7)In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a)by the expiry of a period (including a period expiring by reference to an event or circumstance); (b)by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice”.

[84]Where discriminatory constructive dismissal is alleged, the test is whether or not the discrimination materially influenced the fundamental breach of contract (Lauren De Lacey v Weschsein Ltd ta The Andrew Hill Salon:

UKEAT/0038/20/VP

). Page 11 of 34

[85]In Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

, Lord Denning put it as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

[86]A resignation in response to conduct by the employer which falls short of being a breach of a fundamental term, is simply a resignation.

[87]To succeed in a claim for constructive dismissal, the employee must establish that:(i) The employer was in breach of a term of the contract of employment; and

(ii) The breach was a repudiatory one, entitling the employer to resign; and

(iii) The employee resigned because of that breach of contract.

[88]The burden of proof is on the employee to establish each of the above.

[89]The implied term of trust and confidence was formulated by the House of Lords in Malik and Mahmud v BCCI

[1997] ICR 6060

as being an obligation that the employer shall not: “Without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[90]In Leeds Dental Team Ltd v Rose

[2014] ICR 94

, EAT, the EAT confirmed that the test of whether there was a repudiatory breach of contract is an objective one: “the test in such cases is not whether the employee has subjectively lost confidence in the employer but whether, objectively speaking, the employer’s conduct is likely to destroy or seriously damage the trust and confidence that an employee is entitled to have in his employer”.

[91]In Frenkel Topping Ltd v King

UKEAT/0106/15/LA

the EAT warned about the dangers of setting the bar too low. That decision makes it clear that acting in an unreasonable manner is not sufficient.

[92]In Morrow v Safeway Stores plc

[2002] IRLR 9

, it was held that a breach of the duty of trust and confidence will always be repudiatory.

[93]A breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract, with the employee resigning in response to the final incident. The Page 12 of 34 final incident or “last straw” does not, of itself, have to amount to a breach of contract.

[94]The Court of Appeal in Omilaju v Waltham Forest London Borough Council 2005 ICR, confirmed that, to constitute a breach of trust and confidence based on a series of acts or omissions, the last straw does not have to be of the same character as the earlier acts, and nor does it have to constitute unreasonable or blameworthy conduct. However, it must contribute to the breach of the implied term of trust and confidence. Direct Discrimination

[95]The claimant brings a direct discrimination claim in which she relies on section 13 of the Equality Act 2010 which provides that “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

[96]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[97]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[98]The Tribunal must consider whether the fact that the claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[99]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL, Lord Rodger at paragraph 125, intimated that the key to a claim of direct discrimination will, generally be the determination of the reason for the treatment in issue: whether it was “because of” the relevant protected characteristic.

[100]The burden of proof is set out in section 136 of the Equality Act 2010: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”

[101]This is a two stagged test. The approach to be adopted in applying section 136 is as laid down in Igen Ltd v Wong; Chamberlin Solicitors v Emokpae; Brunel University v Webster

[2005] EWCA Civ 142

[2005] ICR 931

(largely endorsing the principles set out in Barton v Investec Securities Ltd

[2003] ICR 1205

EAT) and approved by the Supreme Court in Efobi v Royal Mail Group Ltd Page 13 of 34

[2021] UKSC 33

. In short, to the extent that the Tribunal is satisfied (on a balance of probabilities) that the claimant has established facts from which it could, in the absence of an adequate explanation, conclude that the respondent had committed an act of unlawful discrimination (having regard to all the evidence, and drawing such inferences as are legitimate from its primary findings of fact at that preliminary stage), it will be for the respondent to prove (again, on the balance of probabilities) that the treatment was in no sense whatsoever because of the relevant protected characteristic. In discharging this burden, a respondent would normally be expected to adduce cogent evidence that the relevant protected characteristic was not the reason for the treatment in question.

[102]In considering whether the claimant has established a prima facie case of discrimination, the Tribunal must have regard to all the evidence, not just that adduced by the claimant (Efobi).

[103]In the case of Reynolds v CLFIS (UK) Limited

[2015] EWCA Civ 439

the Court of Appeal considered whether, for the purposes of establishing whether direct discrimination has taken place, a tribunal should consider the mental processes of those employees who have significantly influenced the alleged discriminatory outcome, or only those of the actual decision-maker. The Court of Appeal stated, “…it is a fundamental principle of the discrimination legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the relevant act (that is, effected the dismissal) must have been motivated by the protected characteristic.”

[104]Each individual act alleged to form part of the continuing act must actually be discriminatory. If any of those alleged acts are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act, discriminatory outcome, or only those of the actual decision-maker. The Court of Appeal stated, “…it is a fundamental principle of the discrimination legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the relevant act (that is, effected the dismissal) must have been motivated by the protected characteristic.”

[105]Each individual act alleged to form part of the continuing act must actually be discriminatory. If any of those alleged acts are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act. Harassment

[106]Section 40(1)(a) of the Equality Act 2010 provides that an employer must not, in relation to employment by it, harass a person who is one of its employees. The definition of harassment is contained in section 26 of the Equality Act 2010 : (1) “A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive Page 14 of 34 environment for B.”

[107]It is not sufficient that the unwanted conduct occurs, it must be shown “to be related” to the relevant protected characteristic.

[108]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.

[109]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in section 26 (4), namely:(a) the perception of B;

(b) the other circumstances of the case;

[110]The claimant must show that the conduct was unwanted. Moreover, it is self- evident and necessarily implicit that any behaviour on which a claim rests must be(a) of a sort to which a reasonable objection can be raised and

(b) voluntary, or at the very least such that the respondent can properly and lawfully bring it to an end. Victimisation

[111]Section 27 of the Equality Act 2010 says: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

[112]In a victimisation claim, the first question is whether the claimant did a protected act. If the claimant has done the protected act, the next question for the Tribunal is whether the respondent subjected the claimant to a detriment because of that protected act, in the sense that the protected act had a material or significant influence on subsequent detrimental treatment. That exercise has to be approached in accordance with the burden of proof, which has already been explained.

[113]If the Tribunal concludes that the protected act played no part in the treatment of the claimant, the victimisation complaint fails even if that treatment was otherwise unreasonable, harsh or inappropriate. Unreasonable behaviour itself does not necessarily give rise to any inference that there has been discriminatory treatment.

[114]The protected act must be more than simply causative of the treatment. It must be the real reason (Chief Constable of Greater Manchester v Bailey

[2017] EWCA Civ 425

). Page 15 of 34

[115]The word detriment in section 27 is to be interpreted widely. The key test is for the Tribunal to ask itself: is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to her detriment? An unjustified sense of grievance would not pass this test, but the test is framed by reference to a reasonable worker, so it would be enough if a reasonable worker would or might take such a view.

[116]The Tribunal made the following decisions on the basis of the material before us, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. We resolved such conflicts of evidence as arose on the balance of probabilities, taking into account our assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts. The following decisions were taken in relation to each of the claims listed on the list of issues. The Tribunal considered the merits of each claim regardless of the time limit.

[117]The Tribunal accepted the claimants stated protected characteristic of race – half Arab half black. Harassment

[118]We considered harassment first as under section 212 of the Equality Act 2010 harassment is not a detriment. This means that a Tribunal cannot find that the same conduct was both harassment and vitaminisation or both harassment and discrimination. If the harassment complaint succeeds, then the discrimination complaint must fail in relation to that same conduct. Issue 5.1.1 Did Mr Pellet call the Claimant the wrong name twice, the wrong name being that of the only other woman of colour in the team?

[119]The Tribunal noted that the respondent did not contest whether these events happened. The claimant reported the comment shortly after it happened and has been consistent in her version of events. We find that the comment made by Mr Pellet was related to the race of the claimant, as the name Racquelle was the name of the only other staff member with the same racial background as the claimant.

[120]We find there are sufficient facts to shift the burden of proof to the

[121]The respondent’s explanation was that the claimant has taken this comment out of context, because Mr Pellet was always sarcastic and never serious. In the respondent’s final submissions Mr Turner states “Hugo Pellett, was by reputation, very sarcastic, this comment could simply have been sarcastic rather that racist” The respondent told us there had been no other complains of racism made against Mr Pellet either before or after incidents 1 and 2.

[122]The claimant’s evidence was that she perceived this as unwanted conduct and the Tribunal accepted this. We also considered whether it was reasonable for the claimant to have that view. The claimant explained to the Tribunal that Racquelle was the only other woman of colour with the same racial background as Page 16 of 34 the claimant, and is was this fact that caused her offence. She told us that she would not have been offended if Mr Pellet had used any other name other than Racquelle.

[123]We find that the respondent did not appear to understand the link between purpose and effect of the conduct on the claimant and held the view that Mr Pellet’s behaviour was acceptable.

[124]We find that it was reasonable for the claimant to be offended by Mr Pellet’s remark and this allegation succeeds. Issue 5.1.2 When the Claimant said, “that’s literally racist?’, did Mr Pellet respond ‘yeah, it is’ and laughed.

[125]The Tribunal noted that the respondent did not contest the claimant’s version of events. The claimant reported the comment shortly after it happened and has been consistent in her version of events. We find that this comment was related to the race of the claimant.

[126]We find there are sufficient facts to shift the burden of proof to the respondent

[127]The respondent’s explanation was that the claimant has taken this comment out of context, because Mr Pellet was always sarcastic and never serious and as such, acceptable behaviour. The respondent told us there had been no other complains of racism made against Mr Pellet either before or after these incidents.

[128]The claimant’s evidence is that she perceived this as unwanted conduct and the Tribunal accepted this. The Tribunal then considered whether it was reasonable for the claimant to have that view. The claimant’s case is that she challenged Mr Pellet and he confirmed that his intent was to make a racist comment. We find that the respondent never appeared to considered the impact that this remark might have had on the claimant as a person of colour and therefore was of the view that Mr Pellet’s behaviour was acceptable.

[129]We find that it was reasonable for the claimant to be offended by Mr Pellet’s remark that he meant his remark to be racist and this allegation succeeds. Issue 5.1.3 Did the Claimant also witness Mr Pellet saying another remark, that “Kael’s name is too hard to pronounce. He needs to shorten it?”

[130]The colleagues name that was mispronounced by Mr Pellet was Kael. The claimant’s case is that she explained to Mr Pellet how to pronounce his name as “Kay-ell not Kale”. Mr Pellet than complained that Kael’s name was too hard to pronounce and he needed to shorten it. Kael’s name is only two syllables, and the claimant says that she and Ms Rizk found his mispronunciation to be micro aggressive behaviour and tried to explain to Mr Pellett that Kael’s name had been given to him for cultural reasons and Mr Pellet should respect that.

[131]Although there was a witness to these events Ms Rizk, the Tribunal noted that the respondent did not contest the claimant’s version of events. The claimant reported the comment shortly after it happened and has been consistent in her version of events. We find that this comment was related to the race. Page 17 of 34

[132]We find there are sufficient facts to shift the burden of proof to the

[133]The respondent’s explanation is that this was also an example of a comment being taken out of context by the claimant.

[134]The claimant’s evidence is that she perceived this as unwanted conduct and the Tribunal accepted this. The Tribunal then considered whether it was reasonable for the claimant to have that view. The claimant’s case is that she also has her name shortened because her full name is commonly mispronounced which is why she found this comment offensive. We find that the respondent never appeared to consider the impact that this remark might have had on the claimant and therefore was of the view that Mr Pellet’s behaviour was acceptable.

[135]We find that it was reasonable for the claimant to be offended by Mr Pellet’s remark that he meant his remark to be racist and this allegation succeeds. Issue 5.1.4 When the Claimant reported Mr Pellet’s racist conduct to the manager, Ms Field, was the complaint appropriately dealt with by the Respondent?

[136]As the informal raising of a grievance and how that was dealt with was about racism, we find that the respondent’s conduct was related to race. The claimant had suggested a remedy to Ms Field, in that she wanted a general message to be made at the next staff meeting about racism and intolerance, which never happened. There was never any feedback to the claimant from Ms Field as to why the message was never given or that Ms Field had decided the escalate the matter to Mr Hayes and that they were both passively monitoring to see whether any further complaints about racism were raised.

[137]We find there are sufficient facts to shift the burden of proof to the

[138]The respondent‘s explanation is that their hands were tied because the claimant did not want to take the matter to a formal grievance. Ms Field told us that she tried to persuade the claimant to raise the matter formally and was unsure of what to do next, so she escalated the matter to Mr Hayes. Mr Hayes decided to passively monitor the situation.

[139]The claimant’s case is that she did not understand that the respondent wouldn’t do any investigation at all, and the respondent should have explained this more clearly to her. The claimant says that by never getting any feedback on the progress of her informal complaint and what action had been taken, she felt that she hadn’t been heard, because she had been left in the dark as to the outcome of her informal complaint. The claimant found this to be unwanted conduct because she wanted to be kept up to date on the progress of her informal complaint. The Tribunal considered whether this was reasonable and we find that this was a reasonable perception for the claimant to have, as she was an estranged student and in fear of losing her job if she caused trouble by complaining. We noted the young age of the claimant and that she was financially vulnerable. Page 18 of 34

[140]Taking all of the above into consideration, we find that this allegation succeeds. Issue 5.1.5 Refuse to promote the Claimant when she applied for the supervisor role and provided her with the following feedback: “keep doing what you’re doing” and “some people just don’t get it”.

[141]The Tribunal considered whether these comments were connected to race.

[142]The Tribunal found that these comments were not connected to race because:(i) Mr Platt did not know about the claimants earlier informal grievance about racist comments;

(ii) Mr Platt told us that only one person got feedback and it was not usual practice to give feedback immediately;

(iii) we found the comments themselves to be neutral and we accept that they were said by Mr Platt alone;

(iv) Mr Platt said that based on the claimant’s performance at the interview he would not have offered the supervisory role to the claimant had she been the only applicant;

(v) Mr Platt had offered to coach the claimant by running through practice questions and answers with her in the future. Mr Platt told us he did not want to focus on negative feedback as the claimant was already upset that she hadn’t been successful in her application.

[143]The claimant’s case is that these comments were unwanted because what she wanted was prompt constructive feedback, so she could improve and be successful, as she wanted to progress. We found that the type of feedback that the claimant wanted didn’t exist.

[144]We find that the claimant has not proved sufficient facts on which the Issue 5.1.6 Did Mr Hayes behave in a manner that was hostile and intimidating towards the Claimant?

[145]The Tribunal did not have any oral or documentary evidence from those people who were in either the interview for promotion or the disciplinary meeting with the claimant, that Mr Hayes behaved in a hostile or intimidating manner towards the claimant. Both Ms Thomasson and Mr Platt gave oral evidence to the Tribunal that they did not witness Mr Hayes behaving in a manner that was hostile and intimidating towards the claimant.

[146]The claimant’s perception is that she found his behaviour hostile and intimidating.

[147]We find that the claimant has not proved sufficient facts on which the Issue 5.1.7 Was the Claimant subject to ongoing hostile and intimidating behaviour from Mr Hayes?

[148]The Tribunal did not have any oral or documentary evidence from those Page 19 of 34 people who were in either the interview for promotion or the disciplinary meeting with the claimant that Mr Hayes behaved in a hostile or intimidating manner towards the claimant. Both Ms Thomasson and Mr Platt gave oral evidence confirming that they did not witness any ongoing hostile and intimidating behaviour from Mr Hayes towards the claimant. Mr Hayes when questioned specifically on this point said he was not aware of any instances where his behaviour could be classed as hostile and intimidating. He told the Tribunal that he was always calm and fair towards all staff.

[149]We find that the respondent and in particular Mr Hayes saw the claimant’s informal grievance and unsuccessful interview as a non-issue, and as such were happy to continue to offer the claimant as many shifts as she wanted.

[150]Other than the two meetings mentioned earlier, the claimant did not provide the Tribunal with any evidence of any further incidents of hostile and intimidating behaviour from Mr Hayes.

[151]We find that the claimant has not proved sufficient facts on which the Issue 5.1.8 Did the Respondent correctly adhere to the disciplinary procedure?

[152]The respondent’s disciplinary procedure is set out in the claimants’ terms be given. The respondent did not follow that procedure and gave the claimant a written warning. The respondent did not provide any evidence that it had varied its procedure. We find that this non adherence is connected to race due to the finding of fact that Mr Hayes was unconsciously biased.

[153]We find there are sufficient facts to shift the burden of proof to the

[154]The respondent’s explanation is that because they were consistent in their misapplication of their spreadsheet and procedures, they treated everyone the same and thus fairly.

[155]The claimant was upset as she felt that failure to follow the disciplinary procedure was unfair and unwanted conduct. We considered whether it was reasonable for her to have that perception. We found that this was a reasonable perception for the claimant to have as her terms and conditions set out the procedure and the respondent had not followed it and the claimant had received no explanation from the respondent as to why the procedure wasn’t followed.

[156]Taking all the above into consideration we find this allegation succeeds. And that the respondent’s failure was connected to the claimant’s race. Issue 5.1.9 Was the Claimant’s disciplinary meeting for lateness handled appropriately by the Respondent?

[157]The Tribunal considered whether this was related to race. We found that the respondent had no deliberate intention to be racist, however racism is very often unconscious. We found that Mr Hayes was unconsciously biased and that this was sufficient to shift the burden of proof to the respondent. By way of example, in his witness statement Mr Hayes admits that he did not consider the claimant’s informal Page 20 of 34 complaint as anything more “ than a comment taken out of context” he did not consider the effect that this had on the claimant.

[158]The claimant found the respondent’s conduct unfair and found the meeting hostile, was anxious and felt she was being personally attacked.

[159]The Tribunal considered whether this was a reasonable perception and we find that this was a reasonable perception for the claimant to have as the respondent did not give any evidence to the claimant prior to the disciplinary meeting, it told the claimant that the only item to be discussed was lateness, and it did not follow its own procedure.

[160]Taking all of the above into consideration we find that this allegation succeeds. Issue 5.1.10 Treat the Claimant differently to other colleagues and tell her that she needed to apologise directly to Mr Hayes for being late?

[161]The claimant’s case is that she was told by Mr Hayes during the disciplinary meeting that she had to apologise to him and Olly directly for being late. The claimant told us that no one else who was also late that week had been told to apologise to Mr Hayes for being late.

[162]The respondent’s case is that Mr Hayes told the claimant that she had to apologise directly to any one of the team of managers, whenever she was late. Ms Thomasson corroborated Mr Hayes’s evidence.

[163]The Tribunal found that the claimant has not proved sufficient facts on which Issue 5.1.11 Call the Claimant rude and accuse her of being late on purpose in the disciplinary meeting?

[164]The claimant’s case is that Mr Hayes called the claimant rude and unprofessional in the disciplinary meeting. The claimant says she was late because she accidentally forgot to adjust her alarm for her shift on the 11 February.

[165]The respondent’s explanation is that they labeled the claimant’s behaviour as rude and unprofessional not the claimant herself . Mr Hayes and Ms Thomasson both told the Tribunal that they found the claimant’s excuse for being late as being “strange” and “ not plausible”. Both Mr Hayes and Ms Thomasson told us that they were of the view that the claimant had been late on purpose because they did not believe the claimant’s excuse that she had set her alarm before she agreed her change to the start time.

[166]We considered whether this was within the reasonable band of conclusions and found that it was not unreasonable for the respondent to conclude that the claimant had been deliberately late, as there was ambiguity in the claimant’s evidence of the reason for her not setting her alarm on time. Page 21 of 34

[167]We considered whether that conduct was related to the claimant’s race and found that it was not, because Ms Thomasson was also in the meeting and collaborated Mr Hayes evidence.

[168]We found that the claimant has not proved sufficient facts on which the Issue 5.1.12 Was it appropriate for the Respondent to then ban the Claimant from the premises indefinitely because she did not work her full notice period?

[169]The claimant’s case is that she had been told at a party that she was banned indefinitely from the respondent’s premises, the bar, Terrace NQ. The claimant says Kael had told her that Mr Hayes had said this.

[170]Three of the respondent’s witnesses confirmed in their witness statements that they did not tell the claimant that she had been banned indefinitely. We prefer the respondent’s evidence on this point, and as such this allegation fails on the facts. Direct Discrimination

[171]The Tribunal then turned its attention to the allegations of direct discrimination and whether each of the allegations alleged were less favourable treatment of the claimant because of her race. The Tribunal considered a hypothetical comparator for each of the allegations with the exception of the allegation in issue 4.1.6, 4.1.7 and 4.1.8 where named comparators were provided by the claimant. Issue 4.1.1 Did Mr Pellet call the Claimant the wrong name twice, the wrong name being that of the only other woman of colour in the team?

[172]This allegation succeeded under harassment issue 5.1.1. Harassment is not a detriment so this allegation fails under direct discrimination. Issue 4.1.2 When the Claimant said, “that’s literally racist?’, did Mr Pellet respond ‘yeah, it is’ and laughed.

[173]This allegation succeeded under harassment issue 5.1.2. Harassment is not a detriment so this allegation fails under direct discrimination. Issue 4.1.3 Fail to do anything after the Claimant reported the allegations of racist behaviour to her manager, Tilly Field (“Ms Field”)?

[174]This allegation succeeded under harassment issue 5.1.4. Harassment is not a detriment so this allegation fails under direct discrimination. Issue 4.1.4 Reject the Claimant for the supervisor position. Refuse to promote the Claimant to supervisor and provide the following feedback, “keep on doing what you’re doing” and “some people just don’t get it”? and Issue 4.1.5 Did Mr Hayes treat the Claimant differently to other colleagues and not provide detailed feedback and said to the Claimant “keep doing what you’re doing” and “some people just don’t get it”? Page 22 of 34

[175]As these allegations are similar and rely on the same facts we considered them together.

[176]The Tribunal found that the treatment alleged in these two issues were capable of being less favourable treatment.

[177]Applying the burden of proof, The Tribunal needed to determine whether the claimant had shown something more required to shift the burden of proof to the respondent. That is the something more which showed (absent an explanation)

[178]The claimant’s case is that she should have been promoted as she was an experienced member of staff, hard worker and a model employee. She wanted prompt constructive feedback so that she could improve and be successful next time.

[179]In the bundle, the respondent provided copies of the interview notes for all applicants. The respondent used these notes in making their decision who to promote to the two supervisory roles. It did not promote the claimant. Although two different question sets were used Mr Platt confirmed in his oral evidence that this fact had no bearing on the outcome of who was successful, because of the two employees who had been successful one interview had been recorded on the usual form and the other on the slightly different one. Both Mr Platt and Mr Hayes told the Tribunal that the claimant did not get the promotion because of her negative answers to certain questions and gave examples to the Tribunal where this negativity was demonstrated by comparison to how other applicants had answered. They made the decision not to promote the claimant jointly. We accept the respondent’s evidence on these issues, as they were able to explain by reference to the interview notes how they had made their decision. We found that it was not less favourable treatment in not promoting the claimant.

[180]We found that it was not less favourable treatment because most of the applicants did not get feedback. The other applicant that the respondent described as a person of colour did not get any feedback after their unsuccessful interview. Regarding what was said, Mr Hayes told us that he said Mr Platt would give feedback if requested. Mr Platt told the Tribunal that he wanted to keep any feedback positive as he could see that the claimant was upset at the rejection. Mr Platt offered to help the claimant by rehearsing questions and answers with her.

[181]We find that the claimant has not proved sufficient facts on which the was related to the claimant’s race and she was treated less favourably. Accordingly, these two allegations fail. Issue 4.1.6 Treat the Claimant differently to other colleagues for being late i.e. by not issuing her with a verbal warning when she hit the trigger point as per the Respondent’s disciplinary policy?

[182]The respondent’s disciplinary procedure is set out in the claimants’ terms be given. The respondent did not follow that procedure and gave the claimant a Page 23 of 34 written warning. The respondent did not provide any evidence that it had varied its procedure.

[183]The Tribunal found that the treatment alleged was capable of being less

[184]Applying the burden of proof, The Tribunal needed to determine whether the claimant had shown something more required to shift the burden of proof to the respondent. That is the something more which showed (absent an explanation)

[185]We find there are sufficient facts to shift the burden of proof to the

[186]The claimant cited CY as an actual comparator and her case was that CY already had a verbal warning and was then given a written warning for lateness. The respondent’s case is that there was no verbal warning on CY’s file and CY had been treated the same as the claimant.

[187]The respondent’s explanation on whether or not the claimant had actually reached the trigger point for lateness was that, because the respondent was consistent in their misapplication of their spreadsheet and procedures, they were treating everyone the same and thus fairly. This is commonly known as the “we treat everyone badly defence” and whilst it does not portray the respondent in a positive light, in these circumstances it does have some merit.

[188]The respondent told us that, it was the fact that the claimant had not followed the correct procedure and her demeanour in the disciplinary meeting that resulted in the claimant being given a written warning.

[189]We found that the claimant was not treated less favourably by the respondent and accordingly this allegation fails. Issue 4.1.7 Issue her with a written warning following the disciplinary meeting.

[190]The respondent’s disciplinary procedure is set out in the claimant’s terms be given. The claimant’s case is that an actual comparator CY had already been given a verbal warning and she told the Tribunal she knew this because CY had told her. She also said that CY had performance issues that caused her lateness whereas the claimant did not have performance issues and was treated less favourably.

[191]The Tribunal found that the treatment alleged was capable of being less

[192]Applying the burden of proof, the Tribunal needed to determine whether the Page 24 of 34

[193]We find there are sufficient facts to shift the burden of proof to the respondent because the respondent did not follow that procedure and gave the claimant a written warning for a first incident of misconduct. The respondent did not provide any evidence that it had varied its procedure.

[194]The respondent’s explanation is that the actual comparator CY, had been late and was also given a written warning. The respondent’s case is that there was no verbal warning on CY’s file and CY had been treated the same as the claimant. Neither the claimant nor the respondent called CY as a witness. The respondent told us that it was the fact that the claimant had not followed the correct procedure and her demeanour in the disciplinary meeting that resulted in the claimant being given a written warning.

[195]Taking all of the above into consideration we found that the claimant was not treated less favourably by the respondent and accordingly, this allegation fails. Issue 4.1.8 Tell her that she needed to apologise to Mr Hayes directly, whereas 2 other people who were also late and who did not share the protected characteristic were not told to do this.

[196]The claimant in her witness statement cites two actual comparators MN and JP who were late to their shifts in the same week as the claimant ie 10 February 2024 who did not have to apologise directly to Mr Hayes.

[197]The Tribunal found that the treatment alleged was capable of being less

[198]Applying the burden of proof, the Tribunal needed to determine whether the

[199]Neither MN or JP were called as witnesses by either the claimant or the

[200]The Tribunal found that we did not have sufficient evidence to make a finding on this. We found that the claimant has not proved sufficient facts on which was related to the claimant’s race and was less favourable treatment. Accordingly, this allegation fails. Issue 4.1.9 Did Mr Hayes say that the Claimant was rude in the Claimant’s disciplinary meeting and accusing her of being late on purpose?

[201]The Tribunal found that the treatment alleged was capable of being less

[202]Applying the burden of proof, the Tribunal needed to determine whether the Page 25 of 34 reminded itself that unfavorable treatment of itself was not enough.

[203]Ms Thomasson was also in the meeting and collaborated Mr Hayes evidence that Mr Hayes had said the claimant’s behaviour was rude, not the claimant. They both said that they found the claimant’s explanation for her lateness strange and not plausible. Both Ms Thomasson and Mr Hayes confirmed to the Tribunal that the apology was to be made to any member of the management team not specifically Mr Hayes. We did not have any evidence of how a comparator would have been treated.

[204]We found that the claimant has not proved sufficient facts on which the was related to the claimant’s race and was less favourable treatment. Accordingly, this allegation fails. Issue 4.1.10 Ban the Claimant indefinitely from the premises because she did not work a shift during her notice period?

[205]The Tribunal found that the treatment alleged was capable of being less

[206]Applying the burden of proof, the Tribunal needed to determine whether the

[207]The respondent’s case is that banning staff for three months who have not worked their notice, is an unwritten rule consistently applied to all staff. Mr Platt, Ms Thomasson and Mr Hayes confirmed in their witness statements that they did not tell the claimant that she had been banned indefinitely. The three witnesses also confirmed that the ban is never communicated formally to the person it is to apply to. The reasons for the ban given by the respondent was to avoid any difficult situations with ex staff, who had not completed their notice period and current staff. We accepted the respondent’s evidence on this point.

[208]We found that the claimant has not proved sufficient facts on which the was related to the claimant’s race and was less favourable treatment. Accordingly, this allegation fails. Victimisation

[209]The Tribunal then turned our discussions to the claimant’s claim of victimisation and alleged acts of detriment. Issue 6.1 Did the Claimant do a protected act within the meaning of section 27(2) EqA? Namely, report the allegations of racist behaviour to her manager, Ms Field?

[210]The protected act relied upon by the claimant is the raising of an informal complaint/grievance made on 4 October 2023 when the claimant reported incident Page 26 of 34 1 and 2 to Ms Field.

[211]The respondent did not contest that the claimant had made an informal grievance. However, we noted that none of the respondent’s witnesses seemed to understand what a protected act was, when cross examined by the claimant.

[212]The Tribunal finds that the claimant made a protected act when she made her informal grievance to Ms Field on the 4 October 2023. Issue 6.2.1 Subject the Claimant to ongoing intimidating and hostile behaviour after she had raised her concerns about racist behaviour.

[213]Two meetings took place after the claimant made her protected act. No other evidence of incidents of intimidating and/or hostile behaviour were provided by the claimant. The claimant’s case is that ongoing intimating and hostie behaviour was a detriment.

[214]We considered whether this was a detriment ie more than an unjustified sense of grievance, looking at the detriment from the claimant’s point of view. We found that if she was subjected to ongoing intimidating behaviour then such behaviour is capable of being a detriment.

[215]Mr Hayes told the Tribunal that he was not aware of any time when he had acted in an intimidating and/or hostile manner towards the claimant.

[216]The claimant attended an interview for promotion where Mr Platt corroborated that Mr Hayes had not acted in either a hostile or intimidating manner during that meeting. Ms Thomasson corroborated that she did not witness any ongoing hostile and intimidating behaviour from Mr Hayes towards the claimant during the disciplinary meeting.

[217]The Tribunal found that the claimant has not proved sufficient facts on which was related to the claimant’s race and that she suffered a detriment because of making the protected act. Accordingly, this allegation fails. Issue 6.2.2 Reject her for the supervisor role. Refuse to promote the Claimant to supervisor and provide the following feedback, “keep on doing what you’re doing” and “some people just don’t get it ”?

[218]This rejection occurred after the claimant made her protected act. The claimant’s case is that this rejection was a detriment.

[219]We considered whether this was a detriment ie more than an unjustified sense of grievance, looking at the detriment from the claimant’s point of view. We found that being rejected for a promotion is capable of being a detriment.

[220]The next question we considered why the respondent had subjected the claimant to that detriment. Mr Hayes and Mr Platt both told the Tribunal that they make an instant decision after each applicant’s interview as to whether or not they proceed to the next round. They told the Tribunal that they each decided not to progress the claimant to the next round. Mr Platt told us that he was surprised that the claimant had performed badly in the interview and he offered to help her by Page 27 of 34 practising questions and answers with her so that she could be successful next time.

[221]Mr Platt did not know about the claimant’s protected act and although we found that Mr Hayes was unconsciously biased and was aware of the protected act, the decision to reject the claimant was a joint one made by both Mr Platt and Mr Hayes.

[222]The Tribunal did not find that the reason why the claimant was rejected was because of the protected act. The claimant did not demonstrate the something more required to shift the burden of proof and show that the reason why she did not get the promotion, was because of the protected act. Accordingly, this allegation fails. Issue 6.2.3 Did Mr Hayes treat the Claimant differently to other colleagues and not provide detailed feedback and said to the Claimant “keep doing what you’re doing” and “some people just don’t get it”?

[223]The claimant’s case was that she wanted immediate constructive feedback and not getting such feedback was a detriment because she could not progress without it.

[224]We considered whether this was a detriment ie more than an unjustified sense of grievance, looking at the detriment from the claimant’s point of view. Not getting detailed feedback is capable of being a detriment as the claimant could not understand where she had failed in the interview.

[225]The next question we considered why the respondent had subjected the claimant to that detriment.

[226]Mr Platt told us that he does not normally give feedback immediately after the interview. He told us that he had occasionally given feedback to some applicants, but this is normally where it is necessary for that applicant to continue in their role, the example given was an applicant who had also failed the interview but was not spatially aware so Mr Platt has given feedback on that point only. We find that the respondent did not give the kind of feedback that the claimant was after.

[227]The Tribunal did not find that the reason why the claimant was not given detailed feedback was because of the protected act. The claimant did not demonstrate the something more required to shift the burden of proof and show that the reason why she did not get the feedback she wanted, was because of the protected act. Accordingly, this allegation fails. Issue 6.2.4 Fail to follow the disciplinary procedure for lateness and fail to give the Claimant a verbal warning when she first hit the trigger point for lateness, as per the Respondent’s policy and Issue 6.2.5 Give the Claimant a written warning for lateness and when she asked why she had not received a verbal warning as per the disciplinary policy, Mr Hayes said in response “I don't know I guess it went under the radar”. Page 28 of 34

[228]Both of these allegations fail under victimisation because both allegations succeeded under harassment issues 5.1.8 and 5.1.9. Harassment is not a detriment. Issue 6.2.6 Act in a manner that was hostile and intimidating towards the Claimant during the disciplinary meeting.

[229]The claimant’s case was that the respondent acted in a manner that was hostile and intimidating towards her and that by acting in this way she suffered a detriment.

[230]The Tribunal found that acting in a hostile and intimidating manner is capable of being a detriment.

[231]The next question we considered why the respondent had subjected the claimant to that detriment.

[232]The persons present at the disciplinary meeting, Ms Thomasson and Mr Hayes both gave evidence corroborating each other that they had not acted in a hostile and intimidating manner. Ms Thomasson was there as a notetaker and witness (which was the respondent’s usual practice) only Mr Hayes spoke. We accept the evidence of the respondent on this point.

[233]The claimant did not provide the Tribunal with any other evidence of incidents of hostile and intimidating behaviour from the respondent.

[234]We find that the claimant has not proved sufficient facts on which the was related to the claimant’s protected act. Accordingly, this allegation fails. Issue 6.2.7 Mr Hayes said to the Claimant that she should have apologised to him directly. However, he did not tell the two other employees who had also been late that week to follow the same procedure and apologise to him directly.

[235]The claimant’s case was that Mr Hayes told the claimant that she had to apologise directly to him when other staff were not told this and that this was a detriment to her.

[236]The Tribunal found that asking the claimant to apologise to Mr Hayes directly when he has not told other staff who had also been late, to do so, is capable of being a detriment.

[237]The next question we considered why the respondent had subjected the claimant to that detriment. The respondent’s case is that Mr Hayes told the claimant that she had to apologise directly to any one of the team of managers, whenever she was late.

[238]We found that we did not have sufficient evidence to make a finding on this. We found that the claimant has not proved sufficient facts on which the Tribunal could decide in the absence of any other explanation that this conduct was related to the claimant’s protected act. Accordingly, this allegation fails. Page 29 of 34 Issue 6.2.8 Call the Claimant rude and accuse her of being late on purpose in the disciplinary meeting?

[239]The claimant’s case was that Mr Hayes told the claimant that she was rude and accused her of being deliberately late in the disciplinary meeting and that this was a detriment to her.

[240]The Tribunal found that calling the claimant rude and accusing her of being late deliberately, is capable of being a detriment.

[241]The next question we considered why the respondent had subjected the claimant to that detriment. The respondent’s case is that they labeled the claimant’s behaviour as rude and unprofessional not the claimant herself . Mr Hayes and Ms Thomasson both told the Tribunal that they found the claimant’s excuse for being late as being “strange” and “ not plausible”. Both Mr Hayes and Ms Thomasson told us that they were of the view that the claimant had been late on purpose because they did not believe the claimant’s excuse that she had set her alarm before she agreed her change to the start time.

[242]We considered whether this was within the reasonable band of conclusions and found that it was not unreasonable for the respondent to conclude that the claimant had been deliberately late, as there was ambiguity in the claimant’s evidence of the reason for her not setting her alarm on time.

[243]We find that the claimant has not proved sufficient facts on which the was related to the claimant’s protected act. Accordingly, this allegation fails. Issue 6.2.9 Ban the Claimant indefinitely from the premises because she did not work her last shift during her notice period.

[244]The claimant’s case was that Mr Hayes told Mr Steele that she had been banned indefinitely from the respondent’s premises that this was a detriment to her.

[245]The Tribunal found that banning the claimant indefinitely is capable of being a detriment.

[246]The next question we considered why the respondent had subjected the claimant to that detriment. The respondent’s case is that it is normal to ban any staff from its premises for three months, who have not served their notice.

[247]This relies on the same facts as issue 5.1.12 which we found failed because we it failed on the facts as the respondents’ witnesses told the Tribunal that they had not banned the claimant indefinitely. We found that the claimant has not proved sufficient facts on which the Tribunal could decide in the absence of any other explanation that this conduct was related to the claimant’s protected act. Accordingly, this allegation fails. Constructive Discriminatory Dismissal

[248]The Tribunal then turned to Issue 3 which was the claimant’s constructive Page 30 of 34 dismissal claim.

[249]The respondent’s case is that they consistently made a genuine attempt to deal with the claimant’s allegations of discriminatory behaviour in a sensitive manner, their hands were tied because the claimant did not want a formal investigation to take place, they were passively monitoring to see if any other similar complaints were made, there were none and there was no sign of any similar incidents. For these reasons, the respondent says the claimant was not entitled to treat her employment as terminated.

[250]The Tribunal accepted that the respondent treated everyone the same, in how they deal with lateness.

[251]The claimant’s case is that a fundamental breach of contract occurs where trust and confidence is destroyed. The claimant’s trust and confidence was destroyed by the respondent failing to follow up on her complaint of racism, taking no steps to prevent discrimination, disciplining her without being given documentary evidence, not advising her of right of appeal, giving her a written warning when the respondent’s procedure states verbal warning, blocking her career progression because of lack of feedback and by the failure by respondent to follow the ACAS code. The claimant says that the respondent had every opportunity to put things right, but failed to do so and she had no other choice but to resign. Her case is that it was the respondent’s inaction and her perception of how she was treated in the disciplinary meeting on 11 February and the written warning was for her “the final straw” that caused her to resign. The Tribunal accepts this.

[252]The Tribunal has found that six of the claimant’s complaints of harassment, namely issues 5.1.1., 5.1.2, 5.1.3, 5.1.4, 5.1.8 and 5.1.9 were successful and these align to issues 3.1.1, 3.1.2, 3.1.3, 3.1.4, and 3.1.6. Accordingly we find that issues 3.1.1, 3.1.2, 3.1.3, 3.1.4, and 3.1.6 suceed.

[253]Issues 3.1.5, 3.1.7, 3.1.8 we found failed for the reasons described earlier. In respect of issue 3.1.9 we found that there was no evidence of discriminatory and intimidating treatment during the disciplinary meeting on 11 February, as we preferred the respondents corroborated evidence from Ms Thomasson and Mr Hayes.

[254]The Tribunal found that the respondent did not follow it’s own disciplinary procedure nor did it provide us with any evidence that it had varied its procedure. The claimant was entitled to expect the respondent to adhere to its own procedures. To not do so was an express breach of the claimant’s terms and conditions.

[255]The Tribunal found that a reasonable employer would have followed its own procedure and that the respondent’s conduct breached:(i) the implied term of mutual trust and confidence, due to the continuing acts of harassment and failure to deal with the claimant’s complaint of racism; and

(ii) the express term of the claimant’s terms and conditions, namely not following its own disciplinary procedure by not giving the claimant a verbal warning. We find that these two breaches were sufficiently serious to entitle the claimant to resign.

[256]We also found that race discrimination was a material influence on the Page 31 of 34 fundamental breach of contract. It was the inactivity of the respondent to deal with the claimant’s informal grievance regarding allegations of racist conduct that led the claimant to resign.

[257]The claimant set out her reasons for resigning in her resignation letter and raised concerns which the respondent never responded to. The Tribunal also found that the claimant did not waiver these breaches or delayed too long in resigning.

[258]Taking all of the above into account we find that the claimant was unfairly constructively dismissed because of discrimination. Time Limits

[259]As the discrimination, victimisation and half of the harassment complaints did not succeed on their merits, the Tribunal did not need to determine whether they were brought within the time required.

[260]The Tribunal went on to determine whether the six harassment allegations that succeeded, namely issues 5.1.1,5.1.2,5.1.3, 5.1.4, 5.1.8 and 5.1.9 on the merits were brought on time.

[261]The respondent submits that the claimant’s claim is out of time as the protected act took place on 4 October 2023 and the claim to the Tribunal was not made until 19 April 2024, a period of over six months.

[262]The claimant’s case is that she has been subjected to a course of ongoing discriminatory conduct from the end of August 2023 when incident 1 happened, up to the end of February 2024 when she resigned.

[263]Under section 123 of the Equality Act 2010 all claims must be made within three months of the discriminatory action. In a victimisation claim the time runs from the discriminatory action not the protected act.

[264]The Tribunal finds that the discriminatory acts were incident 1 which occurred late August /early September 2023 and incident 2 which occurred during the last week of September 2023.

[265]We noted that the claimant contacted ACAS on 8 April 2024 which is when the clock stops running. The clock restarts when the ACAS conciliation certificate is issued. The ACAS conciliation certificate was dated 12 April 2024.

[266]Incident 1 happened the last week of August 2023 which is a period of 32 weeks and incident 2 happened the last week of September 2023 which is a period of 28 weeks. Both fall outside the three months (13 weeks) time limit.

[267]The Tribunal finds that the claimant’s harassment claims were not made to the Tribunal within three months (plus the early conciliation extension) from the happening of either incident 1 or incident 2.

[268]We then considered issue 2.1.2 and whether there was conduct extending over a period. Page 32 of 34

[269]The respondent’s case is that there were no instances of conduct since the protected act on 4 October 2023.

[270]The claimant’s case is that there was “a continuing discriminatory situation, not isolated incidents”. The ongoing conduct cited by the claimant occured: Last week of August/early September 2023 - Incident 1 Last week of September 2023 - Incident 2 04 October 2023 – making an informal grievance, the protected act Generally work environment deteriorated after this 28 November 2023 - rejection for promotion and lack of feedback 11 February 2024 - disciplinary for lateness

[271]We found a connection between incident 1 and 2 as both comments were made by Mr Pellet and were connected to race. We also found a connection between incident 1 and 2 and the making of the informal grievance on 4 October 2023 as the grievance was about these two incidents.

[272]The Tribunal did not find a connection between incident 1 and 2 and interview for promotion because Mr Platt was not aware of the claimant’s grievance relating to racial remarks. We were not presented with any evidence from the claimant on the deterioration of the general work environment.

[273]The date of the first act complained of is late August/early September 2023 and we found that there was a continuing act because of the respondent’s lack of updating the claimant on the outcome of her informal grievance. She had requested a remedy which was not carried out, and no one had a conversation with the claimant to explain why this was. We also found a connection between incident 1 and 2 and the disciplinary meeting, because of the fact that the respondent had not updated the claimant on the outcome of her grievance which prevented her from raising a formal grievance.

[274]We did find a connection between the disciplinary meeting and the protected act because Mr Hayes was aware of the claimant’s grievance and that it was related to race. We also made a finding of fact that we found that Mr Hayes was unconsciously biased and that he was the most senior person at this meeting.

[275]Taking all of the above into consideration, we find that this kept the allegations made from incident 1 and 2 alive and continuing until the claimant resigned in late February 2024. The Tribunal finds that the claimant made her claim to the Tribunal within three months of her resignation and is within time.

[276]We also turned our minds to whether it would be just and equitable for the Tribunal to exercise its discretion and allow the claims to proceed and we found that we would exercise our discretion for the following reasons: the young age of the claimant, the fact she was an estranged student and needed her income from the respondent to survive, she was a full time student and working full time hours with the respondent, she had tried to raise the matter informally as per her terms and conditions of employment but was kept in the dark as to how that was progressing, the lack of any timescales in the respondent’s grievance procedure,

[277]The claimant did not know how long she should wait for an update from the respondent and was prejudiced by the respondent’s silence. Page 33 of 34

[278]We considered the prejudice to the respondent and found that by not dealing with the claimant’s grievance in a timely manner, they were not prejudiced in any way.

Remedy

[279]A one day remedy hearing in person at the Manchester Employment Tribunal has been set for 18 March 2026. Case Management Orders

[280]The claimant is to file an updated schedule of loss and witness statement by Friday 27 February 2026, at the Tribunal, copying in the respondent. The witness statement should set out specifically her injury to feelings caused by the harassment allegations that the Tribunal have found to be successful. Approved by: